States must withdraw
from the MoU signed with legally questionable UIDAI

New
Delhi September 5,
2013: The Writ Petition (Civil) of Justice K
S Puttaswamy, former judge of the Karnataka High Court that was
heard on September 2, 2013 before Hon’ble Supreme Court. The petition
echoes some of the concerns raised by seventeen eminent citizens
like Justice V R Krishna, Justice A P Shah, Prof. Upendra
Baxi and the findings of the Parliamentary Standing on Finance in the
matter of
the implementation of world biggest ever biometric data based
identification
exercise.

The petition refers
to a letter of a member of Parliament, Rajya Sabha, Justice M. Rama
Jois, addressed a letter to the Prime Minister in this regard on 19.01.2011
pointing out to the constitutional impropriety of issuing Aadhar Numbers even
when the Bill aforesaid was pending before the parliament. But surprisingly, to
the said letter, he received a reply dated January 29, 2011 simply stating that
the Prime Minister has received his letter without replying to the
points raised in his letter.

Justice Puttaswamy is
a former Judge of the Karnataka High Court since 1977 and after
retirement he was Vice Chairman of Central Administrative Tribunal, Bangalore
Bench, Bangalore. He was Chairman of Andhra Pradesh Administrative Tribunal,
Hyderabad and also Chairman, Andhra Pradesh Backward Class Commission.
The petitioner wants that the executive and legislature must function
within the frame work of the Constitutional provisions so that Government
“does not circumvent the legislature to avoid discussion, debate and
voting in the Parliament and thereby render the legislature redundant or
purposeless.”

The writ petition submitted,
“the petitioner states that collecting Biometric information as a
condition precedent for the issue of Aadhar number is an invasion of
the right to privacy of citizens and therefore this can be done only by the law
enacted by the Parliament and beyond the executive power.”

Taking note of the fact
that “Aadhar number is issued under Section 3 of the (UID) Bill to a
non citizen on the ground that he is residing in this Country, he becomes
entitled to the fundamental rights guaranteed under Article 14 and 21 of the
Constitution as fundamental rights under Article 14 and 21 are available to all
persons in India and consequently also right to a remedy under Article 32 of the
constitution of India”, the petition submits, “it is a matter of
great security concern for the nation also. When such is the magnitude of the
provisions of the Bill, still it is sought to be implemented by the exercise of
executive power without any discussion, debate and the approval by
both the Houses of the Parliament.”

The petition asks
the Supreme Court, “what is the contours of the executive powers of the Central
Government under Article 73 and whether the executive power vested in the Union
can be exercised so as to adversely affect the fundamental right to privacy and
in a manner so as to bye-pass the legislative power of the Parliament? And
render the Bill Purposeless. “The petitioners are constrained to state that the
subject matter involved in the Bill is of serious consequences to the right to
privacy of the citizens of the Country and also right to secrecy of their
personal matter and involves colossal expenditure to the Union.”

It asks “whether the
executive power could be used in a manner so as to make the legislative power
redundant or in other words, whether by the exercise of executive power, the
executive can circumvent the Parliament? However, having regard to the far
reaching importance of the matter which is highly controversial and involves
colossal expenditure, which is sure to become a waste if and when the
Parliament rejects the Bill, or for any reason the scheme becomes impracticable
rendering the enormous money spent till then a National Waste.”

The petition prays
Hon’ble Supreme Court for issuance of “a writ in the nature of
mandamus restraining the respondents from issuing Aadhaar Numbers by way of
implementing its executive order dated 28.01.2009 which tantamount to
implementing the provisions of the National Identification Authority of India
Bill, 2010 pending before the Parliament until and unless the said Bill is
considered and passed by the parliament and becomes an Act of parliament.” On
the grounds that “The scheme formulated by the Central Government in its
notification dated 28.01.2009 constituting Unique Identification Authority of
India [UIDAI] and authorizing it to issue aadhaar numbers which adversely
affect the fundamental right to privacy flowing from Article 21 of the
constitution, cannot be implemented unless it becomes a law enacted by the
Parliament.”

On the ground that “When
the Government has introduced the National Identification Authority of India
Bill, 2010 in the Rajya Sabha for the same purpose for which the executive
order dated 28.01.2009 was issued, and the same has been rejected by the
Standing Committee, Finance, to which it was referred, can still implement its
executive order without bringing the Bill for consideration before
the Parliament for purpose of discussion, debate and passing by it and before
it became an Act of parliament.”

Citizens Forum for Civil
Liberties (CFCL), a research and advocacy group has been campaigning against unregulated biometric,
surveillance and identification technology companies since 2010 and had
appeared before the Parliamentary Standing Committee, Finance in this regard.
Justice M. Rama Jois, MP, Rajya Sabha had shared his views with the
Parliamentary Committee as well.

CFCL has consistently
underlined that the silence of the States which are quite vocal about threats
to federal structure from Union Home Ministry‘s National Counter Terrorism
Centre (NCTC) and National Intelligence Grid (NATGRID) that integrates 21 sets
of databases in the matter of the creation of UID’s Centralized Identities Data
Register (CIDR) disregarding the fact that Planning Commission’s CIDR and Home
Ministry’s National Population Register (NPR) is inexplicable.

The acceptance of the petition by the Parliamentary Standing
Committee on Subordinate Legislation with regard biometric data collection
related to Planning Commission's Aadhaar/Unique Identification (UID) Number and
Home Ministry's National Population Register (NPR) besides the order of the
National Human Rights Commission (NHRC) in Case No. 349/90/0/2012/OC dated
December 27, 2012 merits attention.

In an order date December 27, 2012 addressed to Secretary, Union Ministry of
Home Affairs, National Human Rights Commission (NHRC) has communicated human
rights concerns regarding UID and Radio Frequency Identification (RFID)
submitted to it by CFCL. http://nhrc.nic.in/display.asp?fno=349/90/0/2012

Earlier, NHRC had expressed its deep concerns and apprehensions about UID and
"biometric information" in its submission before the Parliamentary
Standing Committee on Finance.

In the matter of National Identification Authority of India (NIAI) Bill, 2010,
“NHRC’s views on the NIAI Bill, 2010″ in the Human Rights Newsletter (Vol. 18
No.8, August 2011) reveals that UID/Aadhaar Number has dangerous ramifications
is quite relevant in this regard. NHRC’s view was presented to the
Parliamentary Standing Committee (PSC) on Finance. The PSC submitted its report
to the Parliament on December 13, 2011.

Echoing NHRC’s view on “need for protection of information” and “the
possibility of tampering with stored biometric information” in paragraph 5
(page no. 7 of the NHRC newsletter) and “disclosure of information in the
interest of national security” mentioned in paragraph 9 (page no.8 of the
newsletter), the Central Government’s Approach Paper for Legislation on Privacy
dated October 13, 2010 admits, “India does not currently have a general data
protection statute” as per information received from Union Ministry of
Personnel, Public Grievances and Pensions through Letter Reference
No.071/1/2010/-IR dated October 18, 2010.

It may
be noted that Nandan Manohar Nilekani of UIDAI was given ID Limelight Award at
the ID WORLD International Congress, 2010 in Milan, Italy on November 16, 2010
during the Conference held in Milan from November 16 to 18. Besides AB Notes,
the key sponsor of the ID Congress included Safran Morpho (Safran group), a
French multinational corporation specializing in ID credentials solutions
incorporating biometrics application in passports, visas, ID documents, health
and social benefits, elections, etc. Its subsidiary, Sagem Morpho Security Pvt.
Ltd has been awarded contract for the purchase of Biometric Authentication
Devices on February 2, 2011 by the UIDAI.

Earlier, on July 30, 2010, in a joint press release, it was
announced that “the Mahindra Satyam and Morpho led consortium has been selected
as one of the key partners to implement and deliver the Aadhaar program by
UIDAI (Unique Identification Authority of India).” This means that at least two
contracts have been awarded to the French conglomerate led consortium. Is
it a coincidence that Morpho (Safran group) sponsored the award to Chairman,
UIDAI and the former got a contract from the latter?

Nilekani was given the award "For being the force behind
a transformational project ID project in India...and "to provide
identification cards for each resident across the country and would
be used primarily as the basis for efficient delivery of welfare services.
It would also act as a tool for effective monitoring of various programs and
schemes of the Government."

It may also be noted that UIDAI awarded contracts to three
companies namely, Satyam Computer Services Ltd. (Mahindra Satyam), as part of a
“Morpho led consortium”, L1 Identity Solutions Operating Company and Accenture
Services Pvt. Ltd of USA for the “Implementation of Biometric Solution for
UIDAI” on July 30, 2010.

Notably, Davinder Kumar, Deputy Director General, UIDAI will
have residents/ citizens of India believe that the three transnational
biometric technology companies working with foreign intelligence agencies
namely:1) Mahindra Satyam Computer Services/Sagem Morpho, 2) L1 Identities
Solutions and 3) Accenture Services who have been awarded contracts by UIDAI
that “There are no means to verify whether the said companies are of US
origin or not” in a reply to Right to Information (RTI) application dated 21st
July, 2011.

Didn’t Nilekani know the country of origin of the award and
their sponsors who were givren contracts by UIDAI prior to taking the award?

Coincidentally, this Global Summit on Automatic
Identification in 2009 had awarded Tariq Malik, Deputy Chairman of Islamabad
based National Database & Registration Authority (NADRA) too for
implementing UID like project in Pakistan since 2000. Malik is currently the
chairman of NADRA since July 11, 2012. NADRA was established as National
Database Organization (NDO), an attached department under the Ministry of
Interior in 1998. On 10 March, 2000, NDO & Directorate General of
Registration (DGR) merged to form NADRA, an independent corporate body with
requisite autonomy to operate independently and facilitate good
governance. With the mandate of developing a system for re-registering
150 million citizens, NADRA launched the Multi-Biometric National Identity Card
project developed in conformance with international security documentation
issuance practices in the year 2000. The list of speakers at the 2009 Congress
included Robert Leibrandt (Deputy for UID Policy Office - US Secretary of
Defense), R. K. Bajaj (Commissioner of Income Tax - Ministry of Finance,
India). Notably, NADRA Chairman was a speaker at the 2006 Congress itself along
with L1 and others.

The details of Congress held from 2003 and 2005 appear to be
missing now. At the 2003 Congress, General John Watkins, former U.S. Department
of Defense was one of the participants during November 20 - 21, 2003 in Paris.

Given the fact that
convergence of citizens’ personal sensitive information is being converged and
is making right to have citizens’ rights dependent on State’s whims and fancies
at the behest of ungovernable technology companies, States must un-sign the
MoUs they have signed with the UIDAI whose legality is questionable to protect
the rights of the citizens of their respective States. Although belated
legislative assemblies, councils, panchayati raj institutions, Gram Sabhas,
universities etc must examine the illegality and illegitimacy of biometric data
based identifications of citizens and put a stay on the implementation of UID
and NPR related projects.

Media houses ought to consider
deploying legal minds to examine the questionable nature of world's biggest
biometric database (UID-NPR initiatives). If it is not done it will
bring disrepute when students of journalism will undertake content analysis of
the reporting of the issue which has seminal importance for the present and
future generations.